Supreme Court Watch: Campaign Spending, Union Busting and the Subversion of the First Amendment

Posted on Mar 18, 2014

Although predicting the outcome of Supreme Court cases is never a sure thing, two decisions that may be handed down any day—McCutcheon v. Federal Election Commission and Harris v. Quinn—have the clear potential to transform the meaning of the First Amendment and once again expose the court’s radically pro-corporate and anti-union agenda.

Argued in October, McCutcheon was filed by Alabama businessman Shaun McCutcheon and the Republican National Committee to overturn the present legal limits on the aggregate amount of money a person or corporation can contribute directly to candidates for federal office, political parties and political campaign committees during any two-year election cycle. Currently, the biennial maximum is $123,200. The issue of whether the limit on direct campaign contributions is constitutional was left unresolved by the court’s 2010 Citizens United v. Federal Election Commission case.

Argued in January, Harris was filed by the National Right to Work Legal Defense Foundation on behalf of a group of nonunion home care workers in Illinois who object to paying “fair share” fees to the Service Employees International Union to cover the costs SEIU incurs by serving as the exclusive representative for all home care workers in the state. Fair share fees, which have long been approved by the court, are paid in lieu of formal dues by employees who receive the benefits of collective bargaining but choose not to become union members.

Although it’s easy to spot the common right-wing politics driving McCutcheon and Harris, the two cases also share a less discernible right-wing legal ideology that has found a particularly receptive home in the Supreme Court under the leadership of Chief Justice John Roberts. This is the view—essentially a double standard—that corporations and the wealthy, as stewards of democracy, are entitled to heightened First Amendment protections to freedom of speech and association, and that unions are entitled to little, if any.

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This double standard is one of the Roberts court’s great sleights of hand. As UC Irvine School of Law professor Catherine Fisk and Dean Erwin Chemerinsky explained in a February issue brief from the American Constitution Society for Law and Policy, to appreciate and understand the double standard you have to go back and analyze the court’s most recent landmark rulings on campaign and union financing—the Citizens United decision and the 2012 ruling in Knox v. SEIU.

On its face, the court’s central holding in Citizens United applied equally to corporations and unions, permitting both under the First Amendment to spend unlimited general treasury funds—so-called independent expenditures—on advertisements calling for the election or defeat of political candidates. In a separate section of the opinion dealing specifically with dissenting corporate shareholders but potentially applicable to union dissidents as well, the court added that it was untroubled that businesses might spend their general funds on political causes without explicit approval from all shareholders. Any dissenting shareholders, the court’s majority reasoned, could protect their interests “through the procedures of corporate democracy” and the principles of majority rule, or they could take their investments elsewhere.

But as Fisk and Chermerinsky note, the court employed exactly the opposite reasoning in Knox when it held that a union representing public employees could not assess an emergency fee on nonunion workers to support political spending to defeat an anti-labor ballot measure unless the workers explicitly opted to approve such spending. As the Knox opinion instructs, the First Amendment protects not only the right to speak but also the right not to be compelled to speak. Requiring dissenting employees to help pay for political spending they don’t support amounts to compelled speech in violation of the First Amendment, according to the Knox ruling. Unlike Citizens United, the Knox opinion never extols the procedures of union democracy or for that matter ever mentions the First Amendment rights a union has to speak on behalf of the majority of its members.